Date of Filling : 31.05.2013
Date of Disposal :27.10.2015
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR
PRESENT: THIRU. S.PANDIAN, B.Sc., L.L.M., … PRESIDENT
TMT. S.SUJATHA,B.Sc., … MEMBER-I
CC.26/2013
Tuesday, the 27th day of October 2015
A.Gabrial,
S/o Mr. Aasirvadham
No.6/13-Bethelpuram,
Ikkadu, Tiruvallur District - 602 021. …Complainant
/Vs/
- The Manager,
VST Motors Limited,
No.62, Chennai main Road,
Kancheepuram - 613 502.
- The Regional Manager,
Office of the Regional Office,
M/S.TATA Motors,VI Floor,
ASV Ramanas Tower,
Venkatanarayana Road,
T.Nagar, Chennai - 600 017.
- The Manager or Authorized Officer,
Concorde Motors (India) Ltd.,
No.1/16, C.V.Naidu Salai,
Thiruvallur -602 001.…Opposite Parties
….
This Complaint is coming upon before us finally on 14.10.2015 in the
Presence of Thiru.G.Balasubramaniam, Advocate on the side of the complainant, the 1st opposite party having been set Ex-parte, originally the counsel for the 2nd opposite party Thiru.A. Thirumalai, appeared and subsequently for non-appearance, OP2 having been set Ex-parte and M/s.V.Annalakshmi counsel for the 3rd opposite party and upon hearing arguments on the side of the complainant and perused the documents and evidence, this Forum delivered the following,
ORDER
PRONOUNCED BY THIRU. S. PANDIAN, PRESIDENT
This Complaint is filed by the complainant U/S 12 of Consumer Protection Act, 1986 against the opposite parties to pay the cost of the Vehicle of Rs.4,88,008/- Indica V2 LS, Diesel Model Vehicle, to pay the damages of Rs.5,00,000/-for the mental agony and hardship caused by the opposite parties with cost.
The Brief averments of the complaint as follows:
- The complainant had purchased a new vehicle viz.INDICA V2 LS,
diesel bearing registration no.TN 20 BF 4929 from the 1st opposite party on 10.08.2011 for the purpose of running it on hire. The purpose of the said vehicle by the complainant was on hire purchase from Mahindra and Mahindra Fin Ser Ltd., Manavala Nagar, Tiruvallur. The monthly EMI of the hire purchase being Rs.9,750/-. The vehicle started giving one problem after another problem within two months from the date of its purchase thereby giving sleepless nights to the complainant. Whenever there was a problem in the above said vehicle, he used to take it to the nearest service station of TATA Motors to rectify the problem in a day or two and the vehicle will be running for a short duration and again another problem will emerge.
2. That on the advice of the service personnel of the first opposite party, the complainant had to move from one service centre to get his vehicle repaired every time. That in short, the vehicle had failed to run continuously even for a month making the life of the complainant miserable as the vehicle mentioned above is the breadwinner of his family. The continuous failure of the vehicle made the complainant difficult for his to pay even his EMI’s on the hire purchase.
3. That on 02.07.2012, he had sent the above vehicle to the 3rd opposite party since its engine sound became very noisy as ever before and the vehicle could not be run. Though the engineers from the 3rd opposite party had advised him to wait for the analysis report to find out the exact reason for the vehicle’s problem. The purpose of sending the vehicle to the service station is to get over the vehicle’s problem. But instead of finding out the problem and sort out the same, the 3rd opposite party wanted the complainant to permit them to open the engine of the vehicle.
4. While he made repeated demands to all the opposite parties herein to replace the engine or replace the vehicle itself to sort out the continuing breakdown of the vehicle, the 3rd opposite party wanted to break open the engine. All the opposite parties have rejected his demands and refused to change the engine on provide new vehicle thereby caused monetary loss to the complainant as he could not run the vehicle on hire regularly, he had also lost his credentials and business among his customers due to the inaction of the all the opposite parties which amounts to an act of negligence by them causing anxiety to him.
5.To his shock and surprise, the third opposite party one day had informed him that the above said vehicle was damaged in a multiple accident during their custody but they have never informed the complainant about the details of the accident including the damaged caused to the vehicle which clearly shows the act of negligence by the opposite parties. The non replacement of the defective engine of his vehicle is definitely an unfair trade practice and unscrupulous exploitation of the consumer within the meaning of the Consumer Protection Act 1986.
6. He had caused notice to the opposite parties dated 19.12.2013 and asked them to replace his faulty vehicle with new one or at least to change the Engine of the vehicle within 15 days from the date of receipt of the notice, otherwise to face legal consequences for his loss and mental agony. Therefore failed to react on the notice and even fail to give a reply. Hence this complaint.
The contention of the written version of the 3rd opposite party has brief as follows:
7. The opposite party denies all the various allegations made in the complaint as false, baseless and incorrect except those allegations that are admitted herein. The complainant using the vehicle for commercial purpose, as the complainant is not a Consumer and the complaint is liable to be dismissed on this short ground alone. After the completion of the 1st and 2nd service the vehicle came for running repair to the opposite party on 21.12.2011 at 11355Kms with the complaint of check engine noise and on 14.01.2012 for replace tie member rod. The opposite party checked the engine noise and tie member rod replaced. The complainant duly after thoroughly satisfying himself with the performance of the vehicle, took delivery of the vehicle.
8. The vehicle in dispute came to the opposite party on 02.07.2012 Kms for check engine light comes on and engine noise. It was noticed by the opposite party that some problem in the engine and informed the complainant that it was necessary to open the engine to find the root cause. Till date the complainant did not given the approval or showed any response to start the work and to get back the vehicle. Moreover, the opposite party sent several letters to the complainant (Doc. No.11 to 15 filed by the complainant) enabling them to proceed the work and informed the complainant that complete engine assembly is not possible, as per TATA Motors warranty policy. There is no multiple accident/damage happened in the complainant’s vehicle in the opposite party custody and it was stoutly denied by this opposite party. So, there is no unfair trade practice, negligence, deficiency in service, cheating or fraud as alleged by the complainant. The legal notice never reached the opposite party.
9. The complainant has filed this baseless complaint alleging problems in the vehicle without having produced any expert opinion/documentary proof in the form of evidence to prove that the vehicle suffers from problem as alleged. The complainant has failed and neglected to maintain the vehicle as recommended in the owner’s manual. The complainant cannot take advantage of his own ignorance by not adhering to the warranty instructions in the manual and alleged that the ops had sold a defective vehicle. On examination it is found that the car is in a good condition and there are no chances of problems on normal and proper driving.
10. There is no deficiency of service or negligence on the part of the answering the opposite party in providing the service to the complainant. Just in order to grab the amount from the opposite parties the complainant is trying to beat the bush with malafide intention. When the vehicle was delivered in good working condition it does not warrant a replacement. The opposite parties is therefore neither liable for any deficiency in service nor for the payment of any compensation much less than the compensation claimed by the complainant. Hence this complaint is liable to be dismissed.
11. At this juncture, the point for the consideration before this Forum is:
- Whether there is any deficiency of service and unfair Trade Practices on the part of the opposite parties as alleged in the complaint?
- To what other reliefs, the complainant entitled to?
12. Point 1:Regarding this point, on careful perusal of the averments made in
the complaint it is stated that out of short time of purchase the vehicle Indica V2 LS diesel model bearing registration no.TN 20 BF 4929, had failed to run continuously and thereby the complainant had faced very difficult to run is life and therefore the complainant had sent the about the said vehicle to the 3rd opposite party, since engine sound became very noisy. It is further stated by the complainant that instead of finding out the problem and sort out the same, the 3rd opposite party wanted the complainant to permit them to open the engine of the vehicle, which is unreasonable one and in spite of repeated demands, the 3rd opposite party cannot be come forward to rectify the defects and thereby caused mental agony to the complainant.
13. While so, on the side of the 3rd opposite party it is contended that on
02.072012 it was noticed by the 3rd opposite party with the problem in engine and informed the complainant that it was necessary to open the engine to find out the root cause, but till date the complainant did not give to the approval and start the work and to get be back the vehicle and also the complainant has failed to maintain the vehicle as recommended in the owner’s manual and therefore there is no deficiency in service or negligent on the part of the 3rd opposite party in providing the service to the complainant.
14. At this juncture, the duty cast of the complainant to prove the case of deficiency in service on the part of the opposite parties. First of all, on going through the proof affidavit of the complainant it is learnt that the said vehicle was purchased from the VST Motors Ltd., on 10.08.2011 through Exhibit A1, Tax Invoice, Exhibit A2 is the registration certificate of the said vehicle, Exhibit A3 to A8 are the Tax Invoices for conducted services on different dates, Exhibit A9 is the cash receipt issued by the 3rd opposite party, Exhibit A10 is the Job Slip issued by the 3rd opposite party on 02.07.2012 for handing over the above said vehicle for certain faults. Further, it is stated by the complainant in the proof affidavit that in spite of taking steps to rectify the defects in the engine, the 3rd opposite party sent letters Exhibit A11 to A15 in seeking consent from the complainant for opening the engine, only having intention drag on the work and therefore the complainant had issued Exhibit A16, the legal notice to the opposite parties and the acknowledgement cards for the receipt of the same are marked as Exhibit A17 and even thereafter he did not come forward to rectify the defects nor to replace to the engine. On the other hand, on careful perusal of the proof affidavits of the 3rd opposite party is completely denied the averments made by the complainant and in fact, the consent by the complainant is just and necessary to open the engine as per the terms and conditions and so that way he was sent so many letters to the complainant, but the complainant purposely has not given any consent or reply till date and therefore it could not proceed further and hence there is no deficiency in service.
15. At this juncture, on going through the rival submissions put forth on either side with due care and action, it is seen that there is no dispute regarding the purchase of the said vehicle from the opposite parties and the early services have been done with the opposite parties. Similarly, it is an admitted fact that above the said vehicle was sent to the 3rd opposite party on 02.07.2012, since its engine sound is very noisy and the vehicle could not be run and to that effect it is crystal clear from the Exhibit A10, the Job Slip. In Exhibit A10, it is clearly mentioned as check engine light comes, some time running and engine noise check. So from Exhibit A10, the above said vehicle was handed over to the 3rd opposite party for certain defects in the engine, that is within a year of purchase. In this regard, the opposite party also categorically admitted both in the written version and the proof affidavit that there was some problem in the engine, when the opposite party checked the engine on 02.07.2012. If it is so, where is the question arise about the consent of the complainant to open the engine is in question? It goes without saying whereas the 3rd opposite party who is the authorized service dealer, he ought to have open the engine if he thinks fit in order to rectify the defects either in the engine or somewhere in the parts of the engine or vehicle. Instead the 3rd opposite party had simply sent the letters Exhibit A11 to A15 in a routine manner is not a good attitude of the dealer. It clearly shows the delayed attitude of the 3rd opposite party’s as pointed out by the complainant.
16. At the outset, this Forum wants to highlight that whereas the 3rd opposite party himself admitted in written version as well as proof affidavit that there is some problem and noisy in the engine of the about said vehicle, such an admitted facts need not be proved. Therefore, there is no merit to say that the complainant has failed to prove the manufacturing defect in the vehicle through an Expert opinion, such plea taken by the opposite parties is liable to be rejected. Furthermore, it is noticed that no reply was given by the opposite parties for the legal notice Exhibit A16, through it was acknowledged by the opposite parties, which clearly the reveals the fact that there is a deficiency on the part of the opposite parties. Moreover on other facts also the complainant had proved the allegations against the opposite parties.
17. In light of the above facts and circumstances this Forum can easily to hold that there is deficiency in service on the part of the opposite parties. Thus the Point No-1 is answered accordingly.
18. Point 2: Before answering this point, this Forum is having duty to decide whether the complainant comes under the terms consumer or not. It is contended by the 3rd opposite party, that the vehicle was using for commercial purpose, the complainant is not a consumer. On perusal of the complainant, it is clearly established that though the vehicle was running it is hire, it was only for the livelihood of the complaint and therefore the complainant is a consumer and hence the plea by the 3rd opposite party is rejected. In view of the findings arrived in point no.1, the complainant is entitled for certain reliefs with this reasonable compensation and cost. Thus the point no.2 is answered accordingly.
In the result, this complaint is allowed in part. Accordingly, the opposite parties are jointly and severally directed to open the Engine of the vehicle Indica V2 LS, bearing the Registration No.TN20 BF 4929 and to repair properly in all aspects and to return the same to the complainant with good condition within 15 days from the date of the receipt of this order, failing which the opposite parties will pay the present cost of above said vehicle. Further it is directed to pay the compensation of Rs.30,000/-(Rupees thirty thousand only) towards mental agony due to deficiency of service on the part of the 3rd opposite party and a cost of Rs.5,000/-(Rupees five thousand only)
The above amount shall be payable within one month from the date of
receipt of the copy of the order, failing which the said amount shall carry interest at the rate of 9% P.A. till the date of payment.
Dictated by the president to the steno-typist, transcribed and computerized by her, correctly by the President and pronounced by us in the open Forum on this 27th October 2015.
MEMBER I PRESIDENT
List of Documents filed by the complainant
Ex.A1/Dt.10.08.2011: Copy of the Tax Invoice of the said vehicle.
Ex.A2/Dt. : Xerox copy of the Registration Certificate of the complainant’s
said vehicle.
Ex.A3 to Ex.A8 : Copy of the Tax Invoices of the said vehicle
Ex.A9/Dt.21.05.2012: Cash receipt of the paid by the complainant.
Ex.A10/Dt.02.07.2012: Job slip of the said complainant’s vehicle given by the 3rd
opposite party.
Ex.A11 to Ex.A15 : Copy of the letters sent by the 3rd opposite party to the complainant.
Ex.A16/Dt.19.12.2012: Office copy of the notice sent by the complainant’s counsel to the opposite parties.
Ex.A17/Dt. : Postal acknowledgement cards of the opposite parties.
List of Documents filed by the Opposite Parties: Nil.
Sd/- Sd/-
MEMBER I PRESIDENT
